Legal Beagle by Graeme Edgeler

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Legal Beagle: The law may be that stupid

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  • Raymond A Francis,

    Hmmm sometimes when I contemplate the whole political donation scene I am inclined to change my mind on allowing politicians to dig into the trough of public money to buy their way back into office
    Then I remember who wrote the rules
    And then I remember who actually gets the monies, the media and various print shops
    Maybe we should give each seeker after public office a small amount of money, very small amount and tell them to get out there and meet their potential voters

    45' South • Since Nov 2006 • 542 posts Report Reply

  • 3410,

    That the campaign manager of a candidate knows who made a donation, but they don't tell isn't enough, because the candidate does know.

    Should that be "because the candidate does n't know.", or am I reading it wrongly?

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Sacha,

    It might hinge on an interpretation of "the" in "the donation". A tad Bill Clinton. Lucrative for laywers though.

    However, if Banks can be proven to have been personally involved in the process of soliciting or receiving this particular donation then I'd love to see any court claim he didn't "know" who the donor was.

    Kim Dotcom has said he is providing evidence.

    Ak • Since May 2008 • 16667 posts Report Reply

  • DexterX,

    The effect and operation of this law is to keep donors anonymous - such concealment is in the interest of the donor and the donee - whereas a law that operated in the public interest, in the interest of an open democracy, would provide a degree of transparency and full disclosure of donations, donors and donees.

    The law needs to be amended in the public interest – though it is unlikely to happen – regardless of whatever government is in power.

    The problems NZ faces are largely one of a lack of quality governance and this law the Local Electoral Act is an enabler in that regard.

    Stupid Law - Stupid Me for thinking that a deceitful and dishonest practice would be an issue with any sort of consequence.

    Auckland • Since Nov 2006 • 1194 posts Report Reply

  • Grassed Up, in reply to 3410,

    "Should that be "because the candidate does n't know.", or am I reading it wrongly?"

    Yes - it should be ("doesn't", that is).

    Since Nov 2008 • 11 posts Report Reply

  • Bart Janssen,

    So legally he might be right but morally he is pretty obviously corrupt, because he would have to work quite hard to avoid legally knowing.

    In short "is this the kind of person we want representing the citizens of the country?"

    Auckland • Since Nov 2006 • 3392 posts Report Reply

  • Rich of Observationz,

    If someone runs as a parliamentary and a local candidate (as Banks did), do they have to keep their funds separate? How does it work - do candidate donations belong to the party if they have one?

    Back in Wellington • Since Nov 2006 • 4459 posts Report Reply

  • Andrew Geddis,

    Things get even more odd.

    Under s.109(1)(b), the requirement is to disclose "the name and address of each person who made an electoral donation TO THE CANDIDATE and the amount of each electoral donation." But under s.109(2)(c), you can disclose "anonymous" donations.

    So what does "anonymous" mean? Well, under s.5, the definition of anonymous is "in relation to an electoral donation (as defined in section 104), ... a donation that is made in such a way that THE CANDIDATE concerned does not know who made the donation."

    Now, does s 109(1)(b) mean that ONLY donations made directly to a candidate personally must be disclosed? Obviously not ... as the definition of "electoral donation" makes clear, there is an obligation to disclose all donations made to fund a candidate's campaign whether given to the candidate directly or to another person acting on that candidate's behalf. Which makes sense, given how campaigns work. So here "to the candidate" really means "to the candidate's campaign".

    Yet it would seem that under s 5, the knowledge requirement is personal to the candidate concerned - "the candidate" really means "the candidate". Which then allows for setting up "chinese walls" inside campaigns, so that the people getting the money don't tell (or, say they don't tell) the candidate who has given what. Which involves an awful lot of trusting candidates and their campaigns to "do the right thing".

    Unless, of course, we read "the candidate" in s.5 as we do in s.109(1)(b) as meaning "the candidate OR HIS/HER CAMPAIGN", which would bring the definition of anonymous into line with the apparent intention of the disclosure mandates in s.109. So the only donations that may be listed as anonymous are those that come into the campaign in a way that can't be traced at all (i.e. through a bank cheque, or cash in a little brown envelope, or the like). In which case, Banks would have been wrong to list Dotcom's donation as anonymous. But did he "know" that his return of donations was inaccurate?

    God, I hate the law.

    Dunedin • Since Nov 2007 • 141 posts Report Reply

  • Andrew Geddis, in reply to Rich of Observationz,

    Rich,

    Banks didn't run for the two offices at the same time ... it was only long after he lost the mayoral race that he looked to ACT and Epsom. But in general, the rules as to which set of electoral laws apply depends on the purpose for any given donation - is it to fund a local campaign or a parliamentary one?

    Candidate donations don't belong to a political party ... unless the party itself made this some sort of condition for giving its endorsement to an individual.

    Dunedin • Since Nov 2007 • 141 posts Report Reply

  • Phil Lyth,

    The anonymous donations issue in general elections has been fixed. Looking at the returns just published, anonymous money over $1,500 has to be paid to the Electoral Commission. Haven't yet found one example yet where that has happened.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • Keir Leslie,

    Mind you, if Banks stands up in a court and says ``I sort-of knew but then I purposely confused myself so I didn't know'' he's going to look like such a prat.

    Since Jul 2008 • 1362 posts Report Reply

  • Ethan Tucker,

    Problems like this one have been fixed at a National level

    You may wish to amend that to a lower-case 'n'...

    Wellington • Since Apr 2008 • 106 posts Report Reply

  • Ian Dalziel,

    rubbing Epsom Salts in the wound....
    John Banks takes his lead from The Master....

    It may be easier for Banks to say what he does know
    as there seems an awful lot he doesn't ...
    or, as usual, he can't remember!
    Can we demand he has a full medical check up
    as his faculties seem faulty far too often.

    Christchurch • Since Dec 2006 • 4959 posts Report Reply

  • Phil Lyth,

    Problems like this one have been fixed at a National level

    I don't know that I'd agree with that in practice. The Electoral Commission has published the candidates' returns from the 2011 election.

    I took a sample, the first 10 National candidates, electorates Auckland Central to East Coast. They declared just over $158,000. Of that, nearly a quarter, or $37,723, was raffle proceeds declared by Bill English. (Maybe he could get those little old ladies to run raffles for Treasury and get NZ back into surplus.)

    $68,976 was declared from the National Party, and a further $23,208 [edit originally and wrongly put figure as $28,188] as 'contributions' via named persons. This appears to be a lawful way of aggregating. For five of the 10 candidates, the only money they declared was from National - and those five include two Ministers and two MPs.

    Only $28,188 was declared from named sources. And I am including in that $5000 from the Road Transport Forum which was declared to be 'contributions' and $6000 from 'Hauraki Chambers' to Scott Simpson. I'm assuming they are local lawyers.

    But effectively anonymous money is more than triple the identified money in this sample.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • BenWilson,

    But sometimes "loophole" is a perfectly appropriate to a law, and the donation regime in the Local Electoral Act is a wonderful example.

    ...

    So yeah. A loophole.

    Color me confused. Are you saying this loophole is perfectly appropriate to our laws? I can't see anything appropriate about laws that allow people to get away with hiding their contributors just by having bad memories (either intentionally or not) or being "lax". Why even bother having disclosure laws if it's really this easy to just laugh them off?

    Auckland • Since Nov 2006 • 8523 posts Report Reply

  • Graeme Edgeler, in reply to BenWilson,

    Are you saying this loophole is perfectly appropriate to our laws?

    No. The word loophole is often ascribed to things that aren't loopholes.

    But the word loophole is appropriately used here. This really is a loophole (with the underlying position being that loopholes are bad).

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Lilith __,

    From Stuff:

    Pullar said that the allegation was a misuse of power and "an attempt to smear Michelle Boag's and my reputation".

    "Had I not recorded this meeting, it would have been ACC's word against mine."

    Prime Minister John Key conceded the recording appeared to show a "difference in opinion" between an Pullar and ACC.

    Key this morning said he had not seen the Fairfax report but he had "loosely heard on the grapevine" that Pullar had a recording of the meeting and was not surprised it had been made public.

    "Yes, there appears to be a difference of opinion," he told TVNZ's Breakfast programme.

    "Although as we know with recordings, that might not be the entire recording."

    How can Key get away with this sort of reply? We could be looking at very serious misconduct by a government department. He doesn't promise to look into it, or that justice will be done.

    Dunedin • Since Jul 2010 • 3447 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    Things get even more odd.

    One thing we should bear in mind is that, despite all the arguments we might be able to make over what the laws could potentially mean, we are talking about a criminal statute. Ambiguity is appropriately resolved in favour of the defendent.

    If we have concerns with the requirements, or the ambiguity of the requirements, Parliament is to blame for:

    1. passing the law; and
    2. not fixing it, despite concerns being raised.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • BenWilson, in reply to Graeme Edgeler,

    This really is a loophole (with the underlying position being that loopholes are bad).

    Whew. It's only a figurative loophole, though. An actual loophole is a hole in the wall to look or shoot through. Totally a design feature.

    Auckland • Since Nov 2006 • 8523 posts Report Reply

  • Graeme Edgeler, in reply to Keir Leslie,

    Mind you, if Banks stands up in a court and says "I sort-of knew but then I purposely confused myself so I didn't know" he's going to look like such a prat.

    It would be a criminal case. It is almost always (but not quite always) a bad idea for any defendant to give evidence.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • izogi, in reply to Bart Janssen,

    In short "is this the kind of person we want representing the citizens of the country?"

    There are a few sorts of people I'd prefer weren't representing the citizens of New Zealand, but many of those people are doing just that right now. I'm not sure how that happened.

    Wellington • Since Jan 2007 • 410 posts Report Reply

  • Natalie Smith,

    This sounds like it will make it very difficult for the non declaration of a known donor to be a proven offence.

    I am also wondering why we are letting another type of indirect donation get past any scrutiny.

    For instance, I believe that Sky City is one of the main benefactors of John Walker's "Field of Dreams" charity. What sort of pay back will they want from John in return of their preference to his charity?

    Auckland • Since Apr 2012 • 1 posts Report Reply

  • Moz, in reply to Andrew Geddis,

    Unless, of course, we read "the candidate" in s.5 as we do in s.109(1)(b) as meaning "the candidate OR HIS/HER CAMPAIGN", which would bring the definition of anonymous into line with the apparent intention of the disclosure mandates in s.109.

    That seems reasonable to me. What's being suggested as the alternative strikes me as less of a loophole and more of a loading bay. You're not carefully lining up to hit a target without exposing yourself, you're backing up a truckload of cash and dumping it into the campaign. Fixing that was the whole point of the national law change, now we should probably have something easier to comply with but more rigorous at a local govt level. This seems simple enough to me: if anyone in your campaign can identify the donor they're obliged to do so and the campaign must report it. It reduces anonymous donations to dumping cash or bank cheques in the bucket that gets passed around at rallies.

    It seems that Banks has probably done something that is not provably a criminal criminal offense, but it seems sufficiently dodgy as to warrant a change in the law. Which sums up a lot of what That Nice Mr Key is doing in our name.

    I do find some amusement in the parallels between the Gillard government in Oz and the Key government in NZ. Both are scrabbling to avoid losing members they desperately need, despite some of those members doing things that justify being booted. Gillard is in the especially amusing position that her opposition did exactly the same thing with one member until she recruited him away. Now that opposition is really sinking the slipper (ahem) despite having spent five years propping him up.

    Sydney, West Island • Since Nov 2006 • 482 posts Report Reply

  • DeepRed, in reply to izogi,

    There are a few sorts of people I'd prefer weren't representing the citizens of New Zealand, but many of those people are doing just that right now. I'm not sure how that happened.

    Malcolm X, in one of his saner moments, had a plausible explanation:

    "If you're not careful, the newspapers will have you hating the oppressed and loving the people doing the oppressing."

    The southernmost capital … • Since Nov 2006 • 4306 posts Report Reply

  • Jarno van der Linden,

    Is the wording of the Act such that it actually forbids the candidate from declaring the name and address of a donor against a donation, when the candidate suspects or believes but does not know?

    When the law says "know", does it mean in the same sense as "beyond reasonable doubt" in a court of law, or is it more absolute?

    Nelson • Since Oct 2007 • 69 posts Report Reply

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